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Trump's repealing of climate regulation opens a "new front" for litigation

The Trump administration's repealing of an Obama-era scientific finding that found greenhouse gases posed a threat to public health could open a new path for filing lawsuits.

Legal experts say that reversing policy could lead to an increase in "public nuisance" lawsuits, which were previously blocked by a Supreme Court decision in 2011 that said that the Environmental Protection Agency should regulate greenhouse gas emissions instead of courts.

Legal experts say that now that the EPA is abandoning this regulatory effort, it's likely that the legal shield created in 2011 will unravel.

Robert Percival is a professor of environmental law at the University of Maryland. He said, "This could be another classic example of overreach on behalf of the Trump administration that comes back to bite them."

On?Thursday, the Environmental Protection Agency repealed the 2009 scientific determination known by the name of the endangerment findings. This was the basis for federal climate regulations. The EPA took action under the Clean Air Act of 1964 to reduce emissions of carbon dioxide and methane from power plants, vehicles and other industries.

EPA Administrator Lee Zeldin called the revocation of the endangerment findings "the largest deregulation act in the history" of the United States. The power companies generally support President Donald Trump's deregulation agenda. However, they are concerned that the repeal of endangerment findings will trigger a wave lawsuits.

Edison Electric Institute (which represents publicly traded utilities) said in September, that the revocation of the endangerment findings could lead to "an increase in litigation alleging common law claims, regardless of their merits."

'NEW FRONT' OPENING

The U.S. courts recognize a legal concept known as "public nuisance" which prohibits actions that interfere unreasonably with the safety and health of a community.

State and local governments typically bring public nuisance lawsuits to force the person responsible to pay for abating or fixing the condition.

These cases are difficult to win in part due to the difficulty in proving a direct causal link between an individual defendant's emissions, and specific climate harms. Legal experts say they could be a tool that environmental activists can use to hold greenhouse gas emitters accountable for climate harms.

In 2004, California and five other state alleged in a lawsuit that the big power companies were responsible for a public nuisance, by contributing to climate changes. American Electric Power, Xcel Energy and other defendants were named.

The case was eventually heard by the U.S. Supreme Court in 2011, which ruled unanimously against all six states.

In a written opinion for the court, Justice Ruth Bader 'Ginsburg stated that the regulation of greenhouse gases should be left to the EPA in accordance with the Clean Air Act. Ginsburg wrote that the law and subsequent EPA action, like the endangerment findings, "displaces the claims the Plaintiffs wish to pursue."

The 2011 ruling allowed power companies the opportunity to avoid public nuisance lawsuits brought in federal court, although some cases brought in state courts have survived.

Legal experts say that the policy change could give public nuisance claims a fresh lease of life.

Sarah Light, a law professor at the University of Pennsylvania, said that this could change the game. If the Clean Air Act does not apply to greenhouse gas emissions, there is no comprehensive statutory system in which Congress intended to displace a nuisance claim, so they could likely proceed in court.

Meghan Greenfield, an environmental lawyer at Jenner & Block, agreed that a new front for lawsuits could be opening.

Greenfield stated that "this is a space where things have been settled for 15 years and you can imagine other wanting to push these fronts even harder." (Reporting and editing by Noeleen Walder and Matthew Lewis; Washington, Jan Wolfe)

(source: Reuters)